[2025] TASSC 19
| COURT: | SUPREME COURT OF TASMANIA |
| CITATION: | Forest Practices Authority v Anti-Discrimination Commissioner [2025] TASSC 19 |
| PARTIES: | FOREST PRACTICES AUTHORITY; |
| DIRECTOR OF PUBLIC PROSECUTIONS | |
| v | |
| ANTI-DISCRIMINATION COMMISSIONER; THE HON GUY BARNETT, ATTORNEY-GENERAL FOR THE STATE OF TASMANIA | |
| FILE NO: | 1366/2023 |
| DELIVERED ON: | 7 April 2025 |
| DELIVERED AT: | Hobart |
| HEARING DATE: | 8 November 2024 |
| Written submissions 7, 21 February 2025 | |
| JUDGMENT OF: | Porter AJ |
| CATCHWORDS: |
Human Rights – Jurisdiction and procedure – Tasmania – Functions of Anti-Discrimination Commissioner – Commissioner may reject complaint on specified grounds – Acceptance gives rise to investigation, liability to compulsory conciliation and possible referral to a tribunal for inquiry – Decision to accept complaint not amendable to judicial review under the Judicial Review Act 2000.
Anti-Discrimination Act 1998, s 64.
Edelsten v Health Insurance Commission (1990) 27 FCR 56; Harris v Bryce [1993] 41 FCR 388; Yoong v Chief
Executive of Medicare [2021] FCA 701, applied.
Byrne v Marles [2008] VSCA 78, 19 VR 612, considered.
Aust Dig Human Rights [53]
Human Rights – Jurisdiction and procedure – Tasmania – Complaint to Anti-Discrimination Commissioner defined as one made in relation to discrimination or prohibited conduct – Commissioner may reject a complaint that does not meet the definition – Test for rejection – Observation that complaint must allege in sufficient detail matters which are capable, if established, of amounting to discrimination or prohibited conduct within jurisdiction.
Anti-Discrimination Act 1998, s 64(1)(b).
Nestle v Equal Opportunity Board [1990] VR 805; Commissioner of Police v Reid [2000] TASSC 181, 9 Tas R
418, applied.
Aust Dig Human Rights [53]
REPRESENTATION:
Counsel:
Applicant: G Chen Respondent: Submitted to the Court's jurisdiction Intervener: J O'Farrell
Solicitors:
Applicant: State Litigation Office Intervener: Crown Solicitor
| Judgment Number: | [2025] TASSC 19 |
| Number of paragraphs: | 111 |
Serial No 19/2025 File No 1366/2013
FOREST PRACTICES AUTHORITY and the DIRECTOR OF PUBLIC
PROSECUTIONS v the ANTI-DISCRIMINATION COMMISSIONER and the HON
GUY BARNETT, ATTORNEY-GENERAL FOR THE STATE OF TASMANIA
| REASONS FOR JUDGMENT (REVISED)* | PORTER AJ 7 April 2025 |
| Introduction |
1 This is an application for judicial review under the Judicial Review Act 2000 (the JRA). The respondent Commissioner has filed a notice of submission and the Attorney-General (the Attorney) has intervened in the proceedings. On 8 May 2023 the Anti-Discrimination Commissioner accepted a complaint "for investigation" under the Anti-Discrimination Act 1998 (the ADA) lodged by Alan Robert Smith against the applicants, the Forest Practices Authority (the FPA) and the Director of Public Prosecutions (the DPP). The Commissioner provided written reasons for doing so.
2 The background is that, upon a referral from the FPA, Crown prosecutors working in 'summary prosecutions' with the DPP filed two complaints against Mr Smith in the Magistrates Court. The complainant in those proceedings was named as Dr Peter Volker, then Chief Forest Practices Officer of the FPA. The first complaint was filed on 29 March 2020; the second on 5 October 2022. Each contains five…
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CaseChat Overview and Summary
The court considered the scope of judicial review of decisions by the ADC under the Anti-Discrimination Act. The court noted the statutory provisions allowing the ADC to reject a complaint on certain grounds, but found that once the ADC accepts a complaint, the process of investigation and conciliation is commenced, and this decision is not subject to judicial review. The court held that the ADC's decision to accept a complaint is a procedural step that does not involve the exercise of a statutory power or discretion, and therefore does not give rise to a decision that is amenable to judicial review under the Judicial Review Act. The court found the ADC's decision to be immune from review, and dismissed the FPA's application.
The court's decision clarified the limited scope of judicial review of decisions by the ADC under the Anti-Discrimination Act. The ADC's decision to accept a complaint is not subject to review, as it does not involve the exercise of a statutory power or discretion. The court's decision may have implications for the ability of parties to challenge the ADC's decisions, and highlights the importance of understanding the limitations on judicial review of administrative decisions. The Federal Court dismissed the FPA's application for review of the ADC's decision to accept the complaint, and made no orders.
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